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Effect given to the recommendations of the committee and the Governing Body
Effect given to the recommendations of the committee and the Governing Body- 25. The Committee last examined this case at its meeting in March 2017 and, on that occasion, made the following recommendations on the issues that were still pending [see 381st Report, March 2017, para. 112]:
- (a) The Committee urges the Government to immediately take all necessary steps to ensure that the company implements, without any further delay, the rulings of the court of El Harrach (Algiers) ordering the reinstatement of Mr Nekkache and Mr Ammar Khodja, with the payment of all salary arrears and the compensation due, in accordance with the rulings of the court. The Committee expects the Government to inform it without delay of the implementation of its recommendation.
- (b) The Committee expects that all the necessary steps will be taken to ensure that the Autonomous National Union of Postal Workers (SNAP) can engage in its trade union activities within the company without obstruction or intimidation of its leaders and members.
- 26. The Government provides its observations in communications dated 16 October 2017 and 25 June 2019 in which it indicates that Algérie Poste (the postal company) partially implemented the decision of the court of El Harrach by paying the sum of 50,000 Algerian dinars in pecuniary damages to Mr Nekkache and Mr Ammar Khodja. Furthermore, the Government reports that Mr Nekkache and Mr Ammar Khodja brought legal action against the company in September 2016 for the payment of a daily penalty of 10,000 Algerian dinars per day of delay in the implementation of the reinstatement order. The Government states that the hearing scheduled for 10 March 2019 has been postponed and that it will inform the Committee of the ruling handed down in this case.
- 27. Furthermore, the Committee takes note of the report of the high-level mission that visited Algiers in May 2019 following the June 2018 conclusions of the Committee on the Application of Standards of the International Labour Conference concerning the application by Algeria of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). On that occasion, the high-level mission gathered information on the present case. The Committee notes in particular the indication that the company has paid compensation to Mr Nekkache and Mr Ammar Khodja but has refused to reinstate them. Following further legal action by Mr Nekkache and Mr Ammar Khodja, the court of Dar El Beïda, in a decision of 21 April 2019, ordered the company to pay an amount of 500,000 Algerian dinars (equivalent to US$3,750) in compensation for its refusal to implement the ruling of 8 September 2015. A representative of the Ministry of the Postal Service informed the high-level mission that the company did not intend to appeal against the decision and that it would pay the compensation in order to close the case under section 73-4 of Act No. 90-11 of 21 April 1990 on labour relations. Lastly, according to the Government, the dismissal of Mr Nekkache and Mr Ammar Khodja was in no way related to their status as officials of the Autonomous National Union of Postal Workers (SNAP), as at the time of their dismissal they could not claim to be delegates of the SNAP, which was only registered in December 2015.
- 28. During its previous examination of the case, the Committee wondered how a public institution could refuse to implement the rulings of a judicial authority without being penalized and regretted that this violation of freedom of association had had an extremely harmful effect on two trade union officials by leaving them without any income. The Committee cannot but once again express its deep concern at the delays in complying with the court decisions of September 2015 that acknowledged the unfair nature of the dismissals and ordered the reinstatement of the two trade unionists, but which, in May 2019, had still not been implemented despite a penalty being imposed on the company by the court. Furthermore, the Committee questions whether the compensation ordered in April 2019 by the court of Dar El Beïda, which does not seem to have taken into account the penalties previously imposed by the courts against the company, was sufficiently dissuasive in nature. In this regard, the Committee recalls its position that the Government should take the necessary measures so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish. If the judicial authority determines that reinstatement of workers dismissed in violation of freedom of association is not possible, measures should be taken so that they are fully compensated. The compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1184, 1172 and 1173]. In these circumstances, the Committee expects the Government to indicate without delay the follow-up given to the ruling of 21 April 2019 of the court of Dar El Beïda, in particular whether the ruling has been the subject of an appeal by the complainants or whether it has been implemented. Furthermore, the Committee expects the Government to inform it of the professional situation of Mr Nekkache and Mr Ammar Khodja, in particular whether they have requested to be reinstated in the company and whether they continue to carry out trade union duties. Lastly, the Committee requests the Government to indicate whether the SNAP, which has been registered since December 2015, continues to operate within the company.
- 29. The Committee draws the Government’s attention to the conclusions of the high-level mission concerning the aspect of dismissing trade unionists during the period of registration of a trade union that can be unfair in part, leading to the de facto termination of their employment relationship with the company in question and which, under the prevailing interpretation of the law, leads to questions about their ability to carry out their trade union duties and to avail themselves of the provisions for protection against anti-union discrimination. Such a gap in the protection of freedom of association may pose serious challenges in terms of the exercise of the right to organize and even encourage acts of anti-union discrimination. The Committee trusts that the Government will initiate without delay an empirical review of the law, with the technical assistance of the Office, in order to ensure that trade union representatives are protected in full conformity with freedom of association.
